Referendum on S1070 could backfire, solidify law

Opponents of the state’s new immigration law may unintentionally cement its place in state statute if an effort to ask voters to reject the law is unsuccessful.

If that happens, a Phoenix attorney says, the voter-protection language in the Arizona Constitution will kick in and prevent future Legislatures from repealing or weakening the law.

Just putting the matter before voters could bar lawmakers from acting.

The referendum, which was filed with the Secretary of State’s Office on April 28, seeks to overturn the controversial law. In order to do so, opponents must submit 76,682 signatures within 90 days of the end of the legislative session. If they do, it would appear on the next general election ballot, and voters could decide whether to keep the law or reject it.

Under state law, that ballot would be a simple up-or-down vote on the law: A yes vote would uphold the law, while a no vote would wipe it from the books.

But Mike Liburdi, an elections attorney at Perkins Coie Brown & Bain, said the Voter Protection Act approved by voters in 1998 would apply if voters approve S1070.

“If voters approve (the law), then according to the Arizona Constitution, the Legislature’s hands are tied,” he said. “The Voter Protection Act applies to both initiatives and referenda.”

If that happens, lawmakers could not repeal the law and would be heavily restricted on amending it. They could approve amendments, but only if the changes “further the purpose” of the voter-approved law and they passed each chamber with support of three-quarters of lawmakers. That would mean lawmakers could not weaken it.

The only way the law could be weakened or repealed in that case would be through another ballot measure.

But the Voter Protection Act goes beyond that, said Assistant Secretary of State Jim Drake. A former House Rules attorney, Drake said the language that provides voter protection applies to referenda, no matter the outcome.

The constitutional language limits the Legislature’s powers to repeal or amend initiatives that are “approved by a majority of the votes cast,” but extends those limitations to referenda “decided by a majority of the votes cast.”

The difference between “approved” and “decided” is important, multiple attorneys said, because it implies that laws subject to referenda are off-limits to legislative tinkering regardless of how voters decide.

“I think it is intended to mean that, even if you put it on the ballot and (the law) failed, it would prevent the Legislature from acting without a three-quarter vote,” Drake said.

Mike Gardner said the voter protection language was intentionally crafted to affect referenda that went before voters, no matter which way voters decided.

“It’s not an accident. They designed it so that even failed referenda couldn’t be messed with by the Legislature,” he said.

Gardner, a former legislator, said the end result is that lawmakers can’t make any changes to a section of statute that was put before voters as a referendum.